Thursday, January 31, 2008

In testimony before the Senate Judiciary Committee yesterday, Attorney General Michael Mukasey refused to deny whether the President of the United States had authorized the use of waterboarding in specific instances.

According the UK news site Guardian Unlimited, Mukasey's non-denial occurred during an exchange with California senator Dianne Feinstein:

When Democratic senator Dianne Feinstein asked if the current path to authorising waterboarding - a request from the CIA director, followed by approval from the attorney general, followed by consultation with the president - had applied in the past, Mukasey said yes.

"I should take a step back," he then added. "I'm not authorised to say what happened in the past, but I was told this wasn't news."

Feinstein pointed to the Bush administration's reported admission that the CIA waterboarded at least three senior members of al-Qaida. Given that the outlined process for authorising the tactic would have involved Bush, she repeated, "Did the president approve that?"

Mukasey declined to answer the question.

I believe I understand the basics of the legal concept of sovereign immunity, but it is increasingly difficult, as an American citizen, to explain to friends from other lands - rogue state hotbeds of Anti-Americanism like Canada and the United Kingdom - why it is that our leaders should not be subject to trial as war criminals when subjects like this arise. I say this not to make an argument in favor of war crimes prosecution for American elected officials, but rather to oppose any practices which even suggest that such a thing might be justified. It is deeply disappointing that that no one in the United States government will, nor apparently can, categorically deny that this nation engages in torture.

On a related note, the same hearing yesterday also produced an interesting exchange between Mukasey and Delaware senator Joe Biden on when the attorney general believes the use of torture to be warrented. Quoting from a piece TPM ran yesterday:

Sen. Joe Biden (D-DE) said that he'd been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden -- the Jack Bauer scenario -- but not OK to waterboard someone for more pedestrian information?

Mukasey responded that it was "not simply a relative issue," but there "is a statute where it is a relative issue," he added, citing the Detainee Treatment Act. That law engages the "shocks the conscience" standard, he explained, and you have to "balance the value of doing something against the cost of doing it."

What does "cost" mean, Biden wanted to know.

Mukasey said that was the wrong word. "I mean the heinousness of doing it, the cruelty of doing it, balanced against the value.... balanced against the information you might get." Information "that couldn't be used to save lives," he explained, would be of less value.

Biden responded, "You're the first I've ever heard to say what you just said.... It shocks my conscience a little bit."

Mukasey, in his third month at the helm of the Justice Department, said he would feel tortured if he, himself, were waterboarded. But he staunchly avoided debating during the Senate Judiciary Committee hearing whether waterboarding is legal. Instead, he echoed the Bush administration's long-standing denial of identifying how al-Qaida detainees have been questioned by CIA interrogators.

Waterboarding involves strapping a person down and pouring water over his cloth-covered face to create the sensation of drowning.

''Would waterboarding be torture if it was done to you?'' asked Sen. Edward M. Kennedy, D-Mass.